April 18, 2015

Top Two Backers: Crushing Dissent?

Editor’s Note: This below is a re-posting of “Are Top Two Backers Seeking to Crush Dissent in California?” from our friends at FairVote.

Are Top Two Backers Seeking to Crush Dissent in California?

by Drew SpencerRob Richie // Published September 15, 2012


Latest News: The Field case interveners have asked for an emergency hearing to kick out the plaintiffs’ motion for reconsideration of the ruling on paying interveners’ legal fees. The judge scheduled to hear the case is Curtis Karnow, the same judge who made the initial ruling in favor of the interveners. The hearing will take place at 11 am on Monday September 17th in Department 302 of San Francisco Superior Court in downtown San Francisco (400 McAllister Street, San Francisco, CA 94102). Despite the short notice, plaintiffs hope supporters can join them in the courtroom.

In 2010, two remarkable allies of electoral reform and independent politics– Richard Winger, a longtime editor of Ballot Access News, and Steven Chessin, president of the all-volunteer group Californians for Electoral Reform – joined four other plaintiffs in challenging California’s new “Two Two” election system. They brought the case as individuals, but represented the views of many advocates of the rights of minor parties who believed that two key aspects of the Top Two law (how it handled write-in votes and association rights) were unconstitutional. Their lawsuit, Field v. Bowen, ultimately lost in court, but led to improvements in the law that better ensure that voters and candidates can adequately assert their electoral rights.

That’s why it was a shock – not only to us, but to Top Two backes like UC-Irvine law professor Richard Hasen (who called  the ruling “absolutely outrageous” and “nonsense”) and columnist Thomas Elias  – when Judge Curtis Karnow hit Winger, Chessin and their fellow plaintiffs with a bill for their opponents’ attorney fees to the tune of $243,279.

Those opponents weren’t the state of California, which did not seek fees. Rather they were interveners in the case (meaning parties whom the plaintiffs did not sue) associated with multi-millionaire proponents of the Top Two system. They include former Lieutenant Governor and current congressional candidate Abel Maldonado, the California Independent Voters Network, and Californians to Defend the Open Primary. These latter two organizations are closely enmeshed with the politically well-connected law firm Nielsen, Merksamer; Nielsen, Merksamer’s senior partner Vigo “Chip” Nielsen maintains the books for both groups and sits on the board of Californians to Defend the Open Primary.

Nielsen is joined on that board by Charles Munger Jr.. Munger is one of California’s biggest political donors and in 2010 gave more than $12 million to the successful ballot measure establishing a more independent redistricting process in California — a donation far more than our organization FairVote’s entire budget over our 20 year history.

Both organizations pay substantial amounts of money to Chip Nielsen’s law firm. Recent Form 990 reports reveal that Californians to Defend the Open Primary doled out $379,637 to Nielsen, Merksamer in 2011, and $699,102 in 2010. The California Independent Voters Network paid $141,610 to Nielson, Merksamer in 2010. (CIVN also had the funds to sponsor “a lavish Hawaii junket for California lawmakers ,” as highlighted by Common Cause.)

Now they seem to want their money back, taking it from plaintiffs like the selfless Winger who earned all of $6,000 in 2011 as the nation’s unquestioned expert on issues relating to ballot access, with a monthly newsletter and website that has a steady stream of timely information about elections and election reform. Given Winger’s outspoken opposition to Top Two, the interveners’ drive for fees comes across as showing more interest in crushing dissent than simply defending their proposals.

Here’s more of the back story. Californians adopted the Top Two system by initiative in June 2010. Top Two ends partisan primaries and replaces them with a two-step election process: a “preliminary” election in June open to all candidates followed by a general election between only the two candidates who received the most votes in the first round, irrespective of party labels and what percentage of the vote they received in the first round.

Although many of our close reform allies oppose all forms of Top Two, FairVote applauds Top Two supporters’ recognition that many issues of political dysfunction can be traced to unfair election systems. But our August 2010 analysis shows that California’s  version of Top Two is flawed, although in ways that we believe can be addressed without going back to the state’s previous rules.

Our analysis of the June 2012 primary confirmed the legitimacy of our concerns. California had its lowest presidential year primary turnout in history, with an unrepresentative balance of participation, a near decimation of third party presence on the November ballot and several disturbing outcomes that included a congressional race where two Republicans advanced in a majority-minority, Democratic-learning district because of low turnout among racial minorities and several Democratic candidates splitting the Democratic vote.

Some of our concerns were among the motivations for the Field plaintiffs to go to court. As one example, the law implementing Top Two included a ballot line for write-ins in the final election in November, but stated that any actual write-in votes would not be counted. The plaintiffs argued that aspect of the law conflicted with constitutional principles. Although the California Court of Appeals rejected their arguments, California legislature ultimately amended the law, effectively (if still incompletely) remedying that problem

Nevertheless, the Field interveners asked for legal fees against the plaintiffs — and Judge Karnow agreed. There’s a special irony for FairVote in the role of Nielsen Merksamer as the firm representing the interveners. Nielsen, Merksamer represented the plaintiffs in the meritless – and ultimately unsuccessful  – Dudum v. Arntz lawsuit to block the instant runoff voting form of ranked choice voting in San Francisco. Among those defending RCV in the Dudum case was the New America Foundation, which filed an amicus brief written by Gautam Dutta; Dutta is same civil rights lawyer who represents the plaintiffs in Field.

The Dudum lawsuit lost in district court and in a unanimous ruling of the Ninth Circuit. Unlike Field, however, the lawsuit did not lead to any policy changes. Despite that fact and despite the case being flimsy and costly to San Francisco taxpayers, the city did not seek fees.

Unfortunately, the Field interveners and their wealthy backers see it differently. Once their case was back in district court on remand, they demanded that the court force Winger, Chessin and the other plaintiffs to pay more than $200,000 for their attorneys and fees. They made this demand, despite the fact that Winger and the other plaintiffs did not pursue attorney fees against them.

What makes the judge’s ruling so troubling is that in the United States, each party in a legal case is generally expected to pay their own legal costs. To do otherwise is to punish one side in litigation for asserting or defending their rights and interests in court. There are exceptions, to be sure. For example, plaintiffs who bring frivolous or bad faith lawsuits might have to pay the legal fees of their opponents. Similarly, a defendant who is being sued for violating important public rights or an important public policy might have to pay the fees for the individual who sues attempting to stop them.

But that was clearly not the case here. The plaintiffs brought a non-frivolous lawsuit in good faith to protect the rights of voters as they saw them. The interveners decided to join the case ensure its position was well-represented. Nonetheless, the district judge ordered the plaintiffs to pay those interveners, effectively punishing them for asserting their rights and the rights of California voters.

The court order at least has spurred a quick response. The plaintiffs promptly filed a motion to reconsider – asking the court to reverse its prior decision – and four separate parties have filed amicus curiae, or “friend of the court,” briefs in their support. In FairVote’s brief, we note the devastating effect on public interest groups that this award of fees could have and detail the order’s patent unfairness.

Americans have many options for how to conduct our elections – some good and some bad. The Top Two system is a credible reform idea that, properly constructed, could uphold majority rule without undercutting First Amendment rights of association and limiting voter choice in November elections. But no one should be punished for opposing it, whether before a legislative body,  the public, or our legal system.

As more jurisdictions consider Top Two – better forms of it, we hope — and other reform ideas. we must take a vigorous look at each proposal and be ready to determine whether any of it may violate our constitutional commitments. Seeking to take revenge on reform advocates or reform opponents when raising legitimate concerns is a dangerous precedent. We hope the interveners stand down from their position and show greater willingness to consider ways to improve their proposal. Regardless, we hope that Judge Karnow reverses his initial ruling.

— Drew Spencer and Rob Richie

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